[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
APRIL 21, 2011
No. 10-14381
JOHN LEY
Non-Argument Calendar CLERK
________________________
D.C. Docket No. 2:10-cr-14037-KMM-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MODESTO ANTONIO LORA,
a.k.a. Cirilo De Jesus Zapata-Lora,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(April 21, 2011)
Before HULL, MARTIN and FAY, Circuit Judges.
PER CURIAM:
Modesto Antonio Lora appeals his 36-month sentence for illegal reentry
into the United States following deportation subsequent to an aggravated felony,
in violation of 8 U.S.C. § 1326(a), (b)(2). He argues that the upward variance
from his guideline sentencing range was unreasonable and created an unwarranted
disparity with the sentences imposed on similarly situated offenders. For the
reasons set forth below, we affirm.
I.
In 2010, sheriff’s deputies in Florida located ten individuals on the beach at
St. Lucie Inlet Park, all of whom admitted to having just arrived in the United
States illegally. One of the individuals, Lora, stated that he had traveled by boat
from the Bahamas with the assistance of a smuggler. Agents discovered that Lora,
using the alias Cirilo De Jesus Zapata-Lora, had been convicted in New York in
1990 for the aggravated felony of attempted third-degree criminal possession of a
controlled substance. He had been deported later that year to his home country of
the Dominican Republic. In 2008, he was incarcerated in Ohio under a criminal-
alien program and again was removed to the Dominican Republic. As to the
instant 2010 reentry, he freely admitted that he did not possess immigration
documents that would allow him to enter the United States, that he had not sought
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permission to reenter, and that he had intentionally reentered in order to see his
family members who permanently reside here.
Lora pled guilty to illegal reentry into the United States after having
previously been arrested and deported, in violation of 8 U.S.C. § 1326(a), (b)(2).
In calculating his guideline sentencing range, the probation office assigned a base
offense level of 8, pursuant to U.S.S.G. § 2L1.2, and an eight-level enhancement
for having previously been deported after a conviction for an aggravated felony,
pursuant to § 2L1.2(b)(1)(C). With a 3-level adjustment for acceptance of
responsibility, § 3E1.1(a)-(b), Lora had a total offense level of 13. A 2007
conviction for illegal reentry, which had led to his 2008 removal, placed him in
criminal history category II. No criminal-history points were assigned for the
1990 controlled-substance conviction or for a 1995 conviction for unlicensed
operation of a motor vehicle. Lora was subject to statutory maximum sentences of
20 years’ imprisonment and 3 years’ supervised release, as well as guideline
ranges of 15-21 months’ imprisonment and 2-3 years’ supervised release.
At the sentencing hearing, the court noted that Lora had received a 20-
month sentence for the 2007 illegal-reentry conviction, and counsel acknowledged
that the instant reentry had taken place 1 day after the expiration of Lora’s
supervised release in that case. The court indicated that it was inclined to sentence
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Lora above the guideline range, as the previous sentence had failed to make an
effective impression on Lora. The court stated that Lora had not received “the
message [that] he is not supposed to be here” and it expressed skepticism that a
high-end guideline sentence of 21 months’ imprisonment would be sufficient. It
indicated that a 36-month sentence might “get[] his attention.” Counsel argued
that Lora loved his family and that the arrest had sent the message that he could
not be with his family. Other than driving offenses, Lora’s only previous
convictions had been the 1990 drug case and the 2007 illegal-reentry case.
Counsel argued that a within-guideline sentence would be appropriate.
The court noted again that this was Lora’s second conviction for the same
offense, and that he had reentered the United States less than two years after his
most recent deportation. It then adopted the guideline calculations and found that
a sentence above the guideline range was appropriate, in light of the nature and
circumstances of the offense, the history and characteristics of the defendant, and
the need to afford adequate deterrence. It stated that a guideline sentence would
be too similar to the previous, inadequate sentence. Accordingly, it sentenced
Lora to 36 months’ imprisonment and 2 years’ supervised release.
II.
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We review the substantive reasonableness of a sentence under an abuse-of-
discretion standard. United States v. Irey, 612 F.3d 1160, 1188 (11th Cir. 2010)
(en banc), petition for cert. filed, (Nov. 24, 2010) (No. 10-727). We will reverse a
sentence under that standard only if the district court has made a clear error of
judgment. Id. at 1189. When conducting this review, we take into account the
totality of the facts and circumstances, including the extent of any variance from
the guideline range. Gall v. United States, 552 U.S. 38, 51, 128 S.Ct. 586, 597,
169 L.Ed.2d 445 (2007). The appellant bears the burden of establishing that the
sentence is unreasonable. United States v. Talley, 431 F.3d 784, 788 (11th Cir.
2005).
After United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d
621 (2005), sentencing is a two-step process that requires the district court first to
“consult the Guidelines and correctly calculate the range provided by the
Guidelines,” then to consider the factors in 18 U.S.C. § 3553(a) and determine a
reasonable sentence. Talley, 431 F.3d at 786. Those factors include: (1) the
nature and circumstances of the offense and the history and characteristics of the
defendant; (2) the need to reflect the seriousness of the offense, to promote respect
for the law, and to provide just punishment for the offense; (3) the need for
deterrence; (4) the need to protect the public; (5) the need to provide the defendant
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with training or medical care; (6) the kinds of sentences available; (7) the
sentencing guideline range; (8) pertinent policy statements of the Sentencing
Commission; (9) the need to avoid unwarranted sentencing disparities; and
(10) the need to provide restitution to the victims. Id. (discussing § 3553(a)). The
sentence must be sufficient, but no greater than necessary, to punish, deter, protect
the public, and provide the training and care outlined in the statute. § 3553(a).
The district court commits a clear error of judgment if it weighs the
§ 3553(a) factors unreasonably, thus arriving at a sentence that does not achieve
the statutory purposes of sentencing. Irey, 612 F.3d at 1189. The court may also
abuse its discretion by failing to consider relevant factors that were due significant
weight, or by giving significant weight to an improper or irrelevant factor. Id.
Nonetheless, a district court does not abuse its discretion when it merely attaches
“great weight” to a single, permissible factor or set of factors. Gall, 552 U.S. at
56-59, 128 S.Ct. at 600-02.
Here, the district court noted that Lora previously had received a 20-month
sentence for his earlier illegal-reentry conviction, and counsel acknowledged that
Lora had reentered the United States 1 day after his supervised release for that
conviction had expired. The court found that the earlier sentence had not deterred
Lora from reentering, and it indicated that a high-end guideline sentence of 21
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months’ imprisonment was unlikely to do so, either. The court heard argument
about Lora’s family life and his criminal background. It then sentenced Lora to 36
months’ imprisonment, approximately a 71% upward variance from the high end
of his guideline range, in light of the nature and circumstances of the offense,
Lora’s history and characteristics, and the need to escalate the sentence in order to
serve as adequate deterrence. The district court did not abuse its discretion in
emphasizing the need for deterrence and the demonstrated inadequacy of a 20-
month sentence. See Gall, 552 U.S. at 56-59, 128 S.Ct. at 600-02; Irey, 612 F.3d
at 1188.
As to the comparative-sentencing examples discussed for the first time in
Lora’s initial brief, the only reasonably comparable cases are United States v.
Gamez-Mendoza, 203 Fed.Appx. 678 (5th Cir. 2006), and United States v. Solis-
Bermudez, 501 F.3d 882 (8th Cir. 2007). While Lora is correct that his scored
criminal history is less extensive and his variance of a greater magnitude than
those in Gamez-Mendoza and Solis-Bermudez, these two cases alone are
insufficient to show that the district court in Lora’s case created a plainly
erroneous sentencing disparity in imposing the 36-month sentence. See United
States v. Aguillard, 217 F.3d 1319, 1320 (11th Cir. 2000) (holding that a
sentencing argument raised for the first time on appeal is reviewed for plain error).
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For the foregoing reasons, we affirm Lora’s sentence.
AFFIRMED.
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